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People v. Kozlowski3/4/2002
possibility of parole, we are satisfied that they were not misled to their prejudice. (See People v. Neal, supra, 159 Cal.App.3d at p. 73 [misstatement of enhancement allegation].)
B. Restitution Fine
Kozlowski and Gatson next contend that the trial court erred by imposing restitution fines in excess of the $10,000 statutory limit. In a felony case, the trial court must impose a restitution fine. The amount of that fine is in the discretion of the trial court, but that discretion is limited to a maximum fine of $10,000. (See former § 1202.4, subd. (b); see also fn. 3, ante.) In this case, the trial court imposed a $50,000 fine against both Kozlowski and Gatson. This fine was imposed in excess of the discretion vested in the trial court pursuant to former section 1202.4. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) The Attorney General concedes this error. We reverse the sentence and reduce these fines to the statutory maximum $10,000. The trial court shall issue amended abstracts of judgment that reflect the reduced restitution fines. (See People v. Ngaue (1992) 8 Cal.App.4th 896, 899, 907.)
C. Parole Revocation Fine
The court also imposed a $50,000 parole revocation fine on both Kozlowski and Gatson, ordering the fine to be suspended unless parole was revoked. (See § 1202.45.) Kozlowski and Gatson argue on appeal that the trial court erred by imposing and suspending these fines. They reason that as these sentences are intended for those eligible for parole, they are not liable for these fines because they were sentenced to life imprisonment without possibility of parole.
In addition to the restitution fine required by section 1202.4, when a person's sentence includes a period of parole, a second fine must be assessed. The fine is to be suspended unless the person's parole is revoked. (§ 1202.45.) Courts interpreting section 1202.45 have applied a commonsense approach to its construction. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182; see also People v. Hannah (1999) 73 Cal.App.4th 270, 273.) In this case, neither Kozlowski nor Gatson is eligible for parole, having been sentenced to life imprisonment without possibility of parole. By law, such a term does not include a period of parole. (See § 3000, subd. (a)(1).) Each defendant was also given two determinate terms, but those terms were ordered to run consecutive to the indeterminate terms, creating the effect of no determinate term. In our case, the overall sentence did not subject either Kozlowski or Gatson to a period of parole. (See People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185 [fine inapplicable when defendant receives an indeterminate sentence of life imprisonment without possibility of parole and a determinate sentence]; see also People v. Hannah, supra, 73 Cal.App.4th at pp. 274-275 [fine inapplicable when defendant receives suspended determinate sentence and is granted probation].)
As their sentences do not allow for periods of parole, Kozlowski and Gatson cannot be said to have been sentenced to a term including a period of parole within the meaning of section 1202.45. The Attorney General concedes this error. The trial court made an unauthorized sentence when it imposed this additional restitution fine. As such, we strike the restitution fine imposed pursuant to that provision and order the abstract of judgment to be corrected accordingly when the matter is remanded to the trial court.
VI. REMITTITUR
The sentences of Kozlowski and Gatson are each modified to reduce the section 1202.4 restitution fine to $10,000 and to strike the section 1202.45 parole revocation fine. A modified abstract of judgment shall be prepared to
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